Donning and Doffing, Quirky Question # 28
Quirky Question # 28:
Our company has a manufacturing facility that has several product assembly lines. Most of our production employees are required to wear basic smocks, hardhats, safety glasses, earplugs and gloves. When the employees enter the building prior to their shift, they retrieve and put on their gear, then walk to their assigned production area. At the end of the shift, they turn in their gear at a central location for cleaning.
Lately, a number of employees have complained that because of lengthy lines to obtain equipment, and the distance between the equipment room and the production floor, they have to arrive a work as much as 15-30 minutes before the start of their shift to ensure that they have enough time to get and put on their gear, and get to the production floor, by the pre-determined line start time. Similar complaints have been made about the amount of time the employees spend waiting in line to turn in gear at the end of their shifts. We have always paid our production employees on a “line-time” basis; in other words, they get paid from the time the production line starts at the beginning of the shift until it stops at the end of the shift (excluding one-half hour they take for lunch). The employees have asked us to add 30 minutes to their compensated shift time – 15 minutes at the beginning and 15 minutes at the end of each shift – so that they get paid for the time spent obtaining and putting on their gear, and turning it in at the end of the day. Do we have to pay employees for this pre-shift and post-shift time?
[When I get a question like yours, I walk down the hall to see my partner, Jim Kremer. Jim, a 1987 graduate of Moorhead State University and a 1990 graduate of Georgetown University Law Center, is an expert on these issues. Jim's resume can be viewed at www.dorsey.com and he can be reached by email at kremer.james@dorsey.com. Since Jim is far more knowledgeable than I regarding these kinds of issues, I asked Jim to address your question. Jim's analysis is set forth below.]
Jim’s Analysis:
As you undoubtedly know, “wage and hour” claims are all the rage (or, from the employer’s perspective, the scourge) these days. Their appeal to plaintiffs’ counsel is understandable. Seemingly innocent or innocuous pay practices, if found to run afoul of the Fair Labor Standards Act (FLSA) or state wage laws, can lead to enormous liability in collective or class actions. Among the issues receiving increased attention is whether employees must be paid for time spent donning and doffing clothing and other gear they are required to wear.
Decades have passed since Congress enacted the Portal-to-Portal Act (excluding certain walking/travel time and activities that are “preliminary or postliminary” to an employee’s “principal [work] activity” from the scope of compensable time). The Supreme Court first addressed a donning/doffing question in its 1956 decision of Steiner v. Mitchell, 350 U.S. 247 (holding that changing clothes and showering were “an integral and indispensable part of the principal activities” of employees of a battery plant, and thus not excluded from compensable time under the Portal-to-Portal Act).
Following Steiner, many courts have wrestled with the question of whether donning and doffing activities must be compensated. The disposition generally turned on:
a) the nature of the gear worn by the employees – whether it was non-unique and relatively simple (such as hardhats, safety glasses, earplugs, smocks and hairnets) or more cumbersome and elaborate safety gear (such as chain mail or other protective equipment worn by employees performing knife work in meat and poultry processing plants);
b) the amount of time and effort required of employees to don and doff the gear in question; and
c) whether use of the gear was optional or mandated by the employer.
Courts generally concluded that the typically nominal time it took an employee to don and doff non-unique gear was either not “work” or did not have to be paid because of the de minimis amount of time involved. Although the courts have not reached accord as to what constitutes a de minimis amount of time, usually less than 10 minutes per day has been characterized as de minimis. In contrast, the more extended time and effort required to don and doff more unique and cumbersome protective gear has generally led to the conclusion that the time expended is compensable.
The donning and doffing landscape changed with a November 2005 Supreme Court decision in the consolidated cases of IBP v. Alvarez and Tum v. Barber Foods, 546 U.S. 21 (2005). Both cases involved claims by employees of meat processing plants for compensation for the time they spent obtaining and donning protective and sanitary gear, walking to their work stations after putting on the gear, and walking to the changing area at the end of a shift to remove the gear.
As to pre-donning waiting time, the unanimous court’s ruling is clear. Time spent waiting to obtain protective gear constitutes “preliminary” activity excluded from compensable time under the Portal-to-Portal Act. Therefore, you do not need to pay your employees for the time they spend waiting in line to get their gear pre-shift. One caveat, however – if you require your employees to report to the changing area at a specific time and the employees then must wait to obtain their gear, the waiting time may have to be paid under Department of Labor regulations (specifically 29 CFR § 790.7(h)). Although a requirement that workers be present at a pre-determined time prior to shift-start time may not alone be sufficient to transform any waiting time into compensable “work” time, prudent employers avoid such mandates. A policy merely requiring employees to be at their work station and ready to work at shift-start time arguably does not implicate the DOL regulation, affording the employer the benefit of the Alvarez holding as to pre-donning waiting time.
With respect to post-donning/pre-doffing walking or waiting time, the Supreme Court held that employees must be paid under the DOL’s “continuous workday rule” (29 C.F.R. § 790.6). The “continuous workday rule” limits the application of the Portal-to-Portal Act to activities occurring before an employee’s first “principal activity” and following his last “principal activity” during the day. In Alvarez, because the donning and doffing of gear was conceded to be a “principal activity” before the Supreme Court, the post-donning/pre-doffing walking time did not implicate the statute’s exclusions and the time was held compensable.
Notably, the issue of whether the donning and doffing of required gear constitutes “principal activity” that must compensated was not directly addressed by the Supreme Court in Alvarez. In one of the underlying cases (IBP v. Alvarez), the Ninth Circuit had held that the time spent donning and doffing unique protective gear was compensable, but that the donning and doffing time relating to non-unique gear (e.g., hardhats, smocks and the like) was “de minimis as a matter of law” and thus not compensable. Neither side challenged these findings before the Supreme Court. Nevertheless, the opinion arguably supports the conclusion that donning and doffing required gear constitutes “work” that is not excluded from compensable time under the Portal-to-Portal Act. Several courts – and the Department of Labor – have so held.
Not all courts agree that Alvarez ends this debate, however. The Second Circuit, for example, affirmed the dismissal of an FLSA collective action, holding that “[t]he donning and doffing of a helmet, safety glasses and boots are ‘relatively effortless,’ non-compensable, preliminary tasks. See Gorman v. Consolidated Edison Corp., 488 F.3d 586 (2nd Cir. 2007).
Another open question following Alvarez is the continued vitality of the de minimis doctrine. While some courts have continued to adhere to historic precedent relieving employers of the obligation to pay employees for donning and doffing activity that is otherwise compensable “work” but takes only a few minutes per day, others have suggested that the doctrine should not operate to deprive employees of compensation – at least where the employees’ aggregate amount of uncompensated time (including walking and waiting time) is measurable, the donning/doffing activity is regular rather than sporadic, and such time can be quantified and captured by the employer.
So your seemingly simple question does not lend itself to a simple answer. The law on the compensability of donning and doffing activities remains in a state of flux. As a practical matter, you need to assess carefully the amount of time your employees spend putting on their required gear, walking to/from their work stations, and waiting in line to turn in their gear at the end of each shift. In my view, the de minimis doctrine remains the employer’s best defense (and in some jurisdictions the only viable defense) against donning and doffing claims, at least where the workforce is non-union. Prospectively, you may want to give consideration to plant layout and procedural changes that could cut down on the amount of time employees expend on these activities. For example, it may be possible to relocate changing areas nearer production areas, minimizing post-donning/pre-doffing walking time. Similarly, placing bins at the doors to production areas in which employees can place their protective/sanitary gear at the end of a shift may substantially reduce doffing time at shift-end. Implementing a few such changes may prove to be much more economical than adding time to each employee’s compensated time.
If you have a union workforce, keep in mind that the FLSA provides that unionized employers are not required to pay employees for the time spent “washing” or donning and doffing “clothes” (which the DOL has said includes donning and doffing protective safety equipment) if the employer has a “custom or practice” of nonpayment or if such activity is expressly excluded from compensable time under a collective bargaining agreement. See 29 U.S.C. § 203(o). This exception in the union setting has its own complexities and inconsistent rulings among the courts, and is the topic for another day.
Finally, the issue of whether all donning and doffing of required protective and sanitary gear on the employer’s premises constitutes compensable “work” – the issue not directly presented in Alvarez – may be squarely before the Supreme Court in the near future. Tysons has petitioned the Supreme Court to resolve the question of whether some degree of exertion is required for donning/doffing activities to be compensable “work.” So stay tuned.
Background Checks, Quirky Question # 26
Quirky Question # 26:
We are desperately trying to hire someone for a position we have had open for far too long. Perhaps our standards have been too high because we haven’t been able to find the right candidate. I recently interviewed a very impressive candidate and would like to extend him an offer. I have not been successful in tracking down some of his references. Moreover, there appear to be a few gaps in his employment history. My intuition tells me to slow down but I do not want to lose this applicant. How important is it to pin down all of the relevant background information?
Roy’s Analysis:
I’d answer your question with one of my own: What’s your tolerance for risk?
A few other questions flow from my first inquiry. Would you be putting any members of the public at risk if you hired this applicant and he did not turn out to be the person you expected? For example, will he be operating dangerous machinery? Or, alternatively, will he, in his role as your employee, have unsupervised contact with the public? Yet a third example – will he have access to your customers’ financial data or manage any customer funds? As these questions are intended to demonstrate, there are many different types of jobs that potentially expose the public, and correspondingly, your company, to risk.
Putting aside for a moment the public interest, a corollary inquiry is whether you would be putting the company at risk if he engaged in any wrongful conduct? For example, will the employee have access to corporate funds? Will he be a spokesperson for the company? Will he have independent authority to enter into contractual agreements that legally bind the company? Will he be entrusted with serving any of the company’s critical accounts? Again, I ask these questions to illustrate that there are a variety of different types of positions where non-performance (or worse, misfeasance) could jeopardize important corporate interests.
Lastly, thinking solely of your selfish interests, what would be the ramifications for you personally of a problematic hiring decision? Would your job be at risk if it turned out that he was not the person he represented on his resume? Would your job be at risk if he injured a member of the public, or a co-worker? Would your job be on the line if he damaged an important customer relationship?
If your answers to any of these questions increase your anxiety, I’d suggest you rely on your intuition, hold off on this hiring decision, and wait until you are able to get additional information. Worst case scenario – you lose a talented applicant whose resume checks out and a position that has been open for some time (admittedly longer than you would like) remains unfilled. Best case scenario – your company avoids a disaster.
The legal theory that you need to be attuned to is a claim for negligent hiring. The basic notion behind this theory is that companies are obligated to exercise an appropriate standard of care when making hiring decisions. The appropriate standard will depend on the nature of the position and the risks the individual poses to members of the public or co-employees. To use a fanciful example, if you were hiring a person with the responsibility for guarding weapons-grade uranium, your due diligence better be damn thorough. Conversely, if you are hiring someone to cut the lawn in front of your company headquarters, perhaps your background checks could be a bit less rigorous.
The seminal Minnesota case on this subject, Ponticas vs. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), was decided 25 years ago. The fact pattern of Ponticas was troubling. A company was hiring someone for the job of resident manager for an apartment complex. The person hired for that job would receive a master key for approximately 200 apartments. The company hired someone without making any effort to check the references he listed on his resume. As it turned out, the references he listed were family members (mother and sister). In addition, the company making the hiring decision failed to explore the multi-year “gaps” in the applicant’s employment. As it turned out, the gaps reflected time the applicant spent in prison.
Without any of this information, the company hired Dennis Grafice, a 25-year old with a troubled past, including sporadic employment, criminal convictions for multiple offenses, and incarceration. Not long after he had been hired, Grafice used the master key he had been given to access a tenant’s apartment and sexually assaulted a woman whose husband was out of town on business. She sued the company on the ground that it had been negligent in hiring this individual. The Minnesota Supreme Court accepted the plaintiff’s legal theory, stating “an employer has a duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of their employment, may pose a threat of injury to members of the public.” The court emphasized that companies needed to perform “reasonable investigations” into an applicant’s background, a concept that took into consideration the nature of the position and the risk to the public.
Although negligent hiring cases decided since Ponticas, whether in Minnesota or other jurisdictions, often have involved hiring decisions that have placed dangerous individuals in contact with the public, these are not the only contexts where this legal theory has been accepted. For example, one case involved a hospital’s retention of an individual to coordinate a kidney transplant unit. This individual, who could not read medical charts, was unaware that one of the kidneys implanted in a patient was cancerous, ultimately leading to the death of the recipient. Another case involved an individual who kept loaded weapons at a Boy Scout camp, one of which was fired and accidentally struck a child. Other cases involve situations involving ex-felons who were entrusted with customer funds, only to later embezzle those monies. Moreover, we now live in a time when technological advancements can exacerbate risks, as the $7 Billion loss at the French Bank, Societe Generale, in January 2008, all attributable to the deception of one rogue trader, dramatically illustrates.
So, trust your intuition. Speak with the references the applicant has listed on his resume. Find out their relationship to the applicant. Determine what the applicant was doing during the “gaps” on his resume. Maybe there is an innocent explanation for these breaks in his employment history – perhaps he was a very happy and successful stay-at-home dad. You need to find out whether the explanation is innocent or something else. Until then, don’t make the offer. There will always be another qualified candidate for the position you are trying to fill.
Responsibility for Employee Injury, Quirky Question # 25 (West Coast Questions)
We own and operate glass container manufacturing plants around the country, including Seattle. One of our employees resides in Pennsylvania, and regularly travels around the country to work as a foreman on glass furnace rebuilds. This particular employee began working for us in the 1980s and worked exclusively for us for about five years.
Under the union contract, we pay for travel to and from the work location for all out-of-state foremen, and provide a per diem of $78 per day for every day they are employed on a project, regardless of whether they are scheduled to work. We also provide employees with rental cars.
On a Sunday when he wasn’t scheduled to work, the employee foreman was walking across the street from his hotel to hear “Music in the Park” at a nearby location. As he was crossing the street, he was hit by a car and badly injured. He filed for workers’ compensation benefits. Although we agree that this accident is a terrible tragedy, we do not think his injury is covered. He wasn’t working at the time of the accident after all. Should we dispute the claim?
Federal law and comparable statutes in 43 of the states share the language first used in the “British Compensation Act formula for determining what is a compensable workers’ compensation injury: an injury ‘arising out of and in the course of employment.’” Washington, however, has no requirement that an injury “arise out of” employment, only that the worker was within “the course of employment” when injured.
As the Washington Supreme Court in Ball-Foster Glass Container Company v. Giovanelli ruled on February 21, 2008, the case from which these facts arise, “[t]he language of the statute shows the intent of the Washington Legislature to adopt a broader and more comprehensive statute than other states.”
In line with that philosophy, the Giovanelli court held that the employee’s injury was covered by workers’ compensation pursuant to the “traveling employee doctrine.” This doctrine is also known as the “commercial traveler rule,” or the “continuous coverage rule” in other jurisdictions.
First, the Court determined that Mr. Giovanelli was in fact a ‘traveling employee’ because he was “one whose job requires travel from place to place or to a place from a permanent residence or the employee’s place of business.” As the court observed, Mr. Giovanelli’s “job assignment to Seattle required him to travel to a place away from his permanent residence.” The Court noted that the employer recognized this fact by reimbursing Mr. Giovanelli not only for his travel expenses, but for the journey to and from Seattle, and provided him a per diem during his entire stay in Seattle, including his days off.
It is well established in Washington and other jurisdictions (e.g., Utah, New Mexico, Oregon, Georgia and Texas) that traveling employees are generally considered to be in the course of employment continuously during the entire trip, except during a distinct departure on a personal errand. “The rationale for this extended coverage is that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping, and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of injury.” Citing to another Washington case, the Court articulated the general rule as: “When employees are required by their employers to travel to distant jobsites, courts generally hold that they are within the course of their employment throughout the trip, unless they are pursuing a distinctly personal activity.” The Giovanelli court went further, holding that “…traveling employees are entitled to expanded coverage for travel-related injuries.”
The second issue was whether Mr. Giovanelli’s walk across the street in front of his hotel to a nearby park was a distinctly personal activity. The Court said the test of whether a worker has “left the course of employment” was “whether the employee was pursuing normal creature comforts and reasonably comprehended necessities or strictly personal amusement ventures.” Under the “‘personal comfort doctrine,’ a worker who engages in acts that minister to personal comfort does not thereby leave the course of employment unless the extent of the deviation is so substantial that an intent to abandon the job temporarily may be inferred or the method chosen is so unusual and unreasonable that the act cannot be considered incidental to the course of employment.” The doctrine applies to such acts as eating, resting, drinking, going to the bathroom, smoking and seeking fresh air, coolness or warmth.
Under Washington’s broader statute, the Court held that “[a] traveling employee is entitled to broader coverage [under the personal comfort doctrine] than a nontraveling employee … The nontraveling employee may satisfy his personal needs without leaving the comfort of home.” Accordingly, the Court held that “[i]n taking a Sunday stroll to the park on his single day off, Giovanelli did not ‘distinctly depart’ from the course of employment on a ‘personal errand.’ Neither the nature of his activity nor the manner in which he engaged in it was unreasonable or unusual. The risk of getting injured while crossing the street in front of his hotel during a walk to the park was a risk of his employment. Accordingly, he is entitled to compensation.” As the Supreme Court succinctly stated, “But for [Mr. Giovanelli's] need to lodge away from home during his job assignment, he would not have been there [crossing the street].”
This expansion of workers’ compensation insurance coverage for traveling employees may increase insurance premiums for companies like Ball-Foster Glass, but the Washington Supreme Court left that issue to the Legislature. It will be interesting to see if other jurisdictions follow Washington’s lead.
Superficial Responses to Charges of Discrimination, Quirky Question # 24
Quirky Question # 24:
We run a large food service company, with more than 100,000 employees. Notwithstanding our best efforts to train our store managers regarding federal and state employment laws, we invariably have problems that result in claims of discrimination being filed with the EEOC or parallel state agencies. In our experience, these federal and state agencies do not seem to be very even-handed. No matter how compelling the reasons for our actions, we find these agencies unsympathetic to the evidence we advance in explanation for our decisions. Given this experience, we have been trying to reduce our costs by minimizing the time we expend responding to the Charges of Discrimination. We quickly gather relevant information and submit a superficial response. The agencies are likely to support the employee anyway so our feeling is that this approach won’t make a difference in the agency determination. We will, however, save money. Do you have any concerns with this approach?
Roy’s Analysis:
I do have concerns that the “superficial response” approach you’ve outlined will exacerbate the problems you identified. Even worse, your approach is likely to cost your company more money in the long run. In my experience, the failure to invest appropriate time and energy into an investigation of a discrimination claim and to present persuasively the information you collect is a major mistake.
First, there are different perspectives on claims of discrimination. Some view them as baseless whining by disgruntled employees. Others (more enlightened in my view) see the claims as analogous to the canaries in the mines, alerting your company to potentially serious problems that need to be addressed thoughtfully. At a minimum (as I’ve suggested in other Blog responses), you need to conduct an investigation to find out whether your company has a problem. Your investigation may reveal a hypersensitive, idiosyncratic reaction by an employee that is largely meritless. Or, you may discover that your company has a manager who is unnecessarily exposing your firm to potentially significant liability because of attitudes and actions wholly inconsistent with your company’s well-articulated philosophies.
Second, regardless of which outcome is revealed by your investigation, a thoughtful response to a state or federal agency will benefit your company. For example, if the investigation demonstrates a complete lack of merit to the complaint, you want to tell that story to the agency involved. You not only should be able to persuade the agency to dispense with this claim, you may generally enhance the reputation of your company with the agency involved, a benefit that may assist your company on a closer claim in the future. Alternatively, if your investigation reveals that wrongful conduct occurred and that there is merit to the Charge, you can invest your energy on working cooperatively with the EEOC or the state agency to resolve the issue promptly. This approach has three primary potential benefits. Your firm’s reputation with the agency will be improved, again something that may redound to your benefit in a closer case in the future. Further, and perhaps more importantly, you will be able to take proactive steps to prevent similar problems from arising in the future. Perhaps the offending manager needs more training; perhaps he should be discharged. Either way, the complaint will have alerted you to the problem and enabled your company to address it. The third benefit is that your investigation should equip with you with the information you need to resolve the specific complaint involved, before it escalates into full-fledged litigation, with its attendant adverse publicity and risks of a substantial adverse judgment.
Third, my concern with the “superficial” approach you mentioned is that you will not know which of the two situations described in the preceding paragraph you are confronting. Is the Charge utter BS? Or, is it legitimate? If you treat both situations uniformly, neither your company nor the investigating agency will know. By the time your company determines which situation you are dealing with, you will have expended significant sums. Indeed, it is likely that your “superficial” response will have led to far more inquisitive questions in the “Request for Information” submitted by the agency in response to your submission.
Fourth, in the paragraphs above, I’ve posited the weak plaintiff’s case/strong plaintiff’s case alternative. As we all know, however, there are many cases that fall between these extremes. If you fail to examine these claims carefully and submit a superficial response to the investigating agency, you may well commit your company to a position that you would not have elected to take had a more comprehensive investigation been conducted. In other words, you will have handed the plaintiff a compelling argument that the reason you have advanced for the adverse action (whether a discharge or some other behavior) is a “pretext” or cover-up for the real reason for your action – discrimination.
Fifth, as a corollary to the preceding point, you do not want your response to the EEOC or state agency to constitute a document from which your company will be running for the duration of the dispute, whether at the agency level or in court. You do not want to put your managers in the position of having to explain at their depositions that the reasons set forth in the company’s submission to the federal or state agency were not the “real” reasons the company took the actions for which it is being criticized. These credibility-killing explanations may end up costing your company far more than it ever would have expended conducting a careful, deliberate investigation of the Charge of Discrimination and communicating the evidence you adduced during your investigation to the EEOC.
Finally, I recommend taking the long-term view, rather than focusing specifically on a given charge of discrimination. Demonstrate to the investigating agency that your company takes these issues seriously and is trying diligently to address problems of discrimination in an effective manner. Don’t give the agency reason to doubt the sincerity of your response you submit or, more seriously, your company’s commitment to principles of equal employment opportunity. This will only pique the agency’s interest in scrutinizing your company’s conduct, possibly leading to far more serious problems in the future.
As the above analysis illustrates, I believe strongly in conducting a careful, thoughtful investigation into a Charge of Discrimination. Interview the individuals with knowledge. Examine the relevant documentary evidence. Pin down the facts. Then, spend the time to organize and present this information to the investigating agency as persuasively as you can. Put the evidence in the broader context of the consistent efforts made by your company to support tenets of equal employment opportunity.
In short, the Charge-Response is not the place where your firm should be trying to save a few bucks. As described above, the money “saved” by your company by this approach likely will be consumed (and then some) by the potential problems this approach creates. At the same time, you risk damaging the reputation of your firm within important federal and state agencies.
Coincidentally, just this past week, the EEOC announced its 2007 statistics regarding the number of Charges filed. The EEOC reported that there were 82,792 Charges of Discrimination, approximately a ten percent increase over 2006. The most common claims were race discrimination (37% of the Charges), retaliation (32%) and sex discrimination (30%). These numbers illustrate that positive interaction with the EEOC, or parallel state agencies (whose statistics are not reflected in the EEOC data) regarding Charges of Discrimination, remains critically important for corporate America. [Note that a link to the EEOC's Website is included under "Resources" on the right side of front page.]
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